* The Honorable Edmund A. Sargus, Jr., Un ited States District Judge for the Southern District of Ohio, sitting by designation. NOT RECOMMENDED FOR PUBLICATION File Name: 06a0218n.06

Filed: March 24, 2006 No. 04-2527 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. MARK EDWARD COOK, Defendant-Appellant. / On Appeal from the United States District Court for the Eastern District of Michigan

BEFORE: RYAN and COLE, Circuit Judges; SARGUS, District Judge. * RYAN, Circuit Judge. Mark Edward Cook appeals the sentence of 169 months’ imprisonment he received after pleading guilty to five counts of bank robbery and one count of attempted bank robbery in vi olation of 18 U.S.C. § 2113(a). The dist rict court found that Cook had two prior state convictions for bank robbery and, theref ore, was a Career Offender under United States Sentencing Gui delines Manual § 4B1.1(a) (2003). Cook argues on appeal that he did not qualify fo r Career Offender status under U.S.S.G. § 4B1.1(a) because his two prio r state bank robbery convictions were “related,” having been functionally consolidated at his st ate sentencing. We conclude t hat the district court did not err in finding that Cook’s prior convictions we re not related and, therefore, did not err in sentencing Cook as a CareerOffender. Therefore, we will AFFIRM Cook’s sentence. I.(No. 04-2527) -2- U.S.S.G. § 4B1.1(a) provides that a defendant may be sentenced as a Career Offender if: (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conv iction; (2) the instant offense of conviction is a felony that is eithera crime of violence or a controlled substance offense; and (3) the defendanthas at least two prior felony convictions of either a crime of violence or a controlled substance offense. (Emphasis added.) U.S.S.G. § 4B1.2(c) explains that the requirementof “two prior felony convictions” is satisfied if “the sentences for at least tw o of the aforementioned fe lony convictions are counted separately under the provis ions of § 4A1.1(a), (b), or (c).” To discover what convictions count separately under § 4A1.1, however, one must turn to U.S.S.G. § 4A1.2(a)(2), which states that “p rior sentences imposed in related cases are to be treated as one sentence for purposes of § 4A1.1(a), (b), and (c).” (Emphasis added.) As a result, for “two prior felony convictions” to countseparately under § 4B1.1(a), they cannot be related for purposes of U.S.S.G. § 4A1.1(a), (b), and (c). The Comm entary to U.S.S.G. § 4A1.2 gives the meaning of the term “related” as follows: Prior sentences are not considered related if they were for offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense). Otherwise, prior sentences are considered related if t hey resulted from offenses that (A) occurred on the same occasion, (B) were part of a single common scheme or plan, or (C) were consolidated for trial or sentencing

. U.S.S.G. § 4A1.2, comment. (n.3) (emphasis added). Cook argued before the districtcourt, as he does now, thathis two state convictions for bank robbery are “related” under U.S.S.G. § 4A1.2(a)(2) and, therefore, the concurrent sentences imposed for each robbery conviction should be “treated as one sentence” for the(No. 04-2527) -3- purposes of U.S.S.G. § 4B1.1(a). Before the district court Co ok argued that the two prior robberies were related because they “were part of a single common scheme or plan“ and the two cases “were consolidated for . . . sent encing.” Before this court, Cook has dropped the “common scheme” argument and claims only that the two sentences were functionally consolidated at the stat e sentencing hearing. II. In United States v. Hazelwood , we held that “the ‘functional consolidation’ of two sentences is an inherently fact-specif ic determination and should be reviewed deferentially.” 398 F. 3d 792, 797 (6th Cir. 2005) (citi ng Buford v. United States , 532 U.S. 59, 66 (2001)). A district c ourt’s fact determinations are binding on this court, unless they are clearly erroneous. Id. at 797-98. In Hazelwood , we upheld the district court’s decision that there was no functional consolidation where concurr ent sentences were “separate[ and] individualized” and the “docket num bers” were also separate. Id. at 798. Likewise, in Unit ed States v. Horn , we held that “‘cases are not consolidated when offenses proceed to sentencing under separat e docket numbers, cases are not factually related, and there was no order of consolidat ion.’” 355 F.3d 610, 614 (6th Cir.) (quoting United States v. McAdams , 25 F.3d 370, 374 (6th Cir. 1994)), cert. denied , 541 U.S. 1082 (2004). In Horn , we also dismissed the argument t hat functional consolidation could be shown by such things as a joint trial dat e, a joint sentencing hearing, or concurrent sentences. Id. Our cases make clear that similar treatment of convictions is insufficient to sustain a finding of functional consolidation absent “some explicit i ndication that the trial court intended to consolidate the prior convictions.” Id.(No. 04-2527) -4- In support of his functional consolidati on theory, Cook points out that he was sentenced for the prior robberie s at a single sentencing heari ng; that both offenses were discussed in a joint pretrial statement; a jo int plea agreement for the robberies was entered at a joint hearing; and he was given concurr ent sentences. In addition, he offers as evidence of functional consolidation both an affi davit by his former defense attorney stating that the two cases were functionally c onsolidated and the language printed on the form used to return him to jail after the sentencing hearing. On this foundation, Cook argues that the two state convictions were functionally cons olidated for sentencing. The district court did not think they were and neither do we. No published case in this circuit has held t hat two or more convictions were “related” for purposes of U.S.S.G. § 4B1.1(a) bec ause they were functionally consolidated. Defendants have often argued the t heory, but not successfully. Cook offers nothing to distinguish his argument from t hose that have failed in the past. He is content to point to facts that are the same or logically si milar to those argued before us in Hazelwood and Horn without attempting to show any “explicit indi cation” by the trial court that it “intended to consolidate the prior convictions.” Th ose evidentiary matters our court has not previously considered, such as the affidavitby Cook’s attorney and the language printed on the form used to return Cook to jail, alsogive no indication of what the trial court intended. Finally, the sentencing transcript provides clear evidenc e the two robberies would not have been consolidated for trial. T he state court made a poi nt of informing Cook that, absent his plea, he would be entit led to “two different trials.” We do not hold that there cannot be a case in which two or more prior convictions were functionally consolidated at sentencing, onl y that this is not su ch a case. The learned(No. 04-2527) -5- district court did not err in its conclusion that Cook’s prior stat e convictions were not functionally consolidated and, ther efore, were not related. III. For the foregoing reasons, we AFFIRM the sentence imposed.